Judicial appointments are central to the credibility of India’s constitutional democracy. The Collegium system, evolved through Supreme Court judgments, was designed to insulate this process from executive interference and preserve judicial independence. However, its legitimacy rests entirely on strict adherence to the procedures laid down by constitutional interpretation and the Memorandum of Procedure (MoP). The recent controversy surrounding the Madras High Court Collegium’s recommendations has raised serious constitutional questions about whether procedure itself is being compromised.
How High Court appointments are supposed to work
Under Article 217 of the Constitution, appointments of High Court judges are made by the President after consultation with the Chief Justice of India. In practice, this consultation has been judicially interpreted to mean recommendations by the Collegium system.
For High Courts, the Collegium consists of:
- The Chief Justice of the High Court, and
- The two senior-most judges of that High Court.
Once recommendations are made, they are forwarded to the State government, which may seek clarifications or raise objections. If the Collegium reiterates its recommendation or addresses the concerns raised, the executive is constitutionally bound to accept it. This balance is crucial: while the judiciary has primacy, the executive is not reduced to a mere post office.
The procedural dispute in the Madras High Court
On November 9, 2025, the Madras High Court Collegium recommended six district judges for elevation. Notably, the Tamil Nadu government did not question the merit or integrity of the candidates. Instead, it raised a foundational procedural issue — whether the Collegium itself was properly constituted.
Justice J. Nisha Banu, elevated to the Madras High Court in 2016 and currently the third in seniority, is the second-most senior judge of the court and, by convention, a Collegium judge. However, following a Supreme Court Collegium recommendation, the Union government issued a notification on October 14, 2025 transferring her to the Kerala High Court and placing her ninth in seniority there. Crucially, Justice Nisha Banu did not join the Kerala High Court and continues to function as a judge of the Madras High Court.
Despite this, she was excluded from the Collegium, and Justice M.S. Ramesh, the next senior-most judge, was included instead. The State government sought clarification on the legal authority for this substitution and whether it was backed by any constitutional principle or Supreme Court directive.
Why the State’s query matters constitutionally
The State’s concern was not obstructionist but structural. The MoP clearly states that the Chief Justice of the High Court and the two senior-most judges shall constitute the Collegium. If a sitting senior judge continues to exercise judicial and administrative authority, excluding her without a recorded legal basis raises serious questions.
Instead of addressing this issue, the Collegium proceeded to recommend nine additional advocates for elevation, without clarifying the earlier procedural objection. This silence is constitutionally troubling. When the composition of the recommending body itself is disputed, every subsequent recommendation becomes vulnerable to challenge.
When procedure becomes substance
It is often argued that procedural lapses should not obstruct the appointment of “good candidates”. However, in constitutional governance, procedure is not a technicality — it is the very source of legitimacy.
The Collegium system has no statutory backing; it exists solely because of judicial precedent. Therefore, its authority depends entirely on compliance with the norms it has itself articulated. If a judge who should be part of the Collegium is excluded without explanation, and another is included without jurisdictional clarity, the decision-making body itself becomes constitutionally suspect.
This is not a minor administrative error. It creates uncertainty over who is authorised to exercise constitutional power and places another branch of government — the State — in the dark. That uncertainty amounts to a constitutional crisis rather than a routine disagreement.
Long-standing criticisms of the Collegium system
The present episode also highlights deeper, unresolved critiques of the Collegium system, including:
- Lack of transparency in decision-making,
- Absence of published reasons,
- Perceptions of nepotism and ideological bias,
- Inadequate representation of marginalised groups, and
- Weak institutional accountability.
When opaque procedures combine with unexplained deviations from established norms, public confidence in judicial independence is inevitably eroded.
The need for clarity, not silence
The Madras High Court Collegium owes a reasoned clarification — grounded in law or established procedure — on why Justice Nisha Banu was excluded and Justice M.S. Ramesh was included. Silence in such matters fuels speculation about motive, even if none exists, and that alone damages institutional credibility.
Judicial independence does not mean immunity from procedural scrutiny. On the contrary, it demands a higher standard of transparency and fairness, consistent with the ethical ideal captured in Kural 541, which emphasises impartial inquiry and justice without favour.
Implications for the future of judicial appointments
The issue is not the individual merit of the six district judges or the nine advocates recommended, though concerns about ideological alignment have been voiced. The core question is whether their recommendation conforms to Article 217 and the Memorandum of Procedure.
Once the constitution of the Collegium is questionable, the validity of its recommendations is equally questionable. This creates an avoidable confrontation between the judiciary and the State government — two constitutional organs that must function in mutual clarity, not institutional suspicion.
Why reform can no longer be deferred
This episode should prompt the Supreme Court to revisit the Collegium framework itself. Long-pending reforms such as:
- Clearer rules on Collegium composition,
- Published reasons for inclusion and exclusion,
- Mandatory disclosures of procedure, and
- Greater institutional transparency,
are essential to restore trust.
Judicial independence and procedural integrity are inseparable. When procedure is undermined, independence itself stands weakened.
What to note for Prelims?
- Article 217 of the Constitution.
- Composition of High Court Collegium.
- Role of the State government in judicial appointments.
- Memorandum of Procedure (MoP).
What to note for Mains?
- Critically examine the legitimacy of the Collegium system in light of transparency concerns.
- Discuss why procedure is foundational to constitutional governance.
- Analyse the implications of disputes between the judiciary and executive in appointments.
- Evaluate the need for reforms in India’s judicial appointments process.
